Cite as Pencak v. Concealed Weapon Licensing Board for the County
of St. Clair, 872 F.Supp. 410 (E.D.Mich. 1991)
Christopher Pencak, Plaintiff,
v.
Concealed Weapon Licensing Board for the County of St. Clair;
County of St. Clair; Marion Sargent, in her official capacity and
individual capacity; Jean Gibson Sturtbridge, in her official and
individual capacity; Det. Sgt. Michael Waite; in his official and
individual capacity; Sgt. Michael G. Bloomfield, in his official
and individual capacity, jointly and severally, Defendant.
No. 94-7307.3.
United States District Court, E.D. Michigan, Southern Division.
Dec. 16, 1991.
Christopher Pencak, Warren, MI, for plaintiff.
Laura Amtsbuechler, St. Clair Shores, MI, Eric Eggan, Lansing,
MI, for defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
OR FOR SUMMARY JUDGMENT
EDMUNDS, District Judge.
This matter has come before the Court upon Defendants'
Concealed Weapon Licensing Board for the County of St. Clair;
County of St. Clair; and the members of the Board, Marion Sargent,
Jean Gibson Sturtbridge, Det. Sgt. Michael Waite, and Sgt. Michael
G. Bloomfield Motion to Dismiss or for Summary Judgment.
I. Background
Plaintiff Christopher Pencak is an Attorney and "Pharmacy
Consultant." For many years he carried a concealed weapons license
issued by Concealed Weapons Licensing Board for the County of
Macomb, restricted to two years while licensed as an attorney. The
license expired on September 10, 1993. Some time prior to
September 10, 1993, Plaintiff moved from Macomb County to St. Clair
County. Plaintiff applied in St. Clair County for a renewal of his
license. He alleges that he was told by the county clerk that he
should not spend his money for the renewal application because
"nobody gets a CCW permit in St. Clair County. That is just the way
it is." Plaintiff requested the renewal application nonetheless
and paid the fee. He also requested an appointment with the
prosecutor. Plaintiff alleges that the prosecutor told Pencak that
the county had a policy of not issuing CCW permits, that the county
licensing board would hold a hearing for him but that it would be
futile, and that others have sued concerning this policy in St.
Clair County Circuit Court but have been denied relief.
Plaintiff appeared at the hearing November 18, 1993 and
presented his reasons for requiring his CCW permit to be renewed
and his compliance with applicable law. Plaintiff contended that in
his work representing criminal defendants and visiting pharmacy
clients late at night he is subject to physical danger and
therefore must be allowed to carry a concealed weapon.
The Board denied Plaintiffs application because it determined
that Pencak did not provide compelling reasons for the issuance of
a permit.
Plaintiff filed a complaint in this Court under 42 U.S.C.
section 1983 asserting that the denial of his application to have
a concealed weapons license by the St. Clair County Concealed
Weapons Licensing Board violates the Second Amendment's right to
bear arms, and the Fifth and Fourteenth Amendments' and Michigan
Constitution guarantees of due process and equal protection because
he met all the statutory requirements to carry a concealed weapon,
but was not awarded a permit pursuant to Defendants' blanket policy
of denying such permits. Defendants' filed this Motion to Dismiss
or for Summary Judgment, arguing that the St. Clair County
Concealed Weapons Licensing Board is not a legal entity that can be
sued, that the Board's exercise of its discretion to deny Plaintiff
a permit was reasonable, and that Plaintiff has failed to establish
a liberty or property interest in either a license to carry a
concealed weapon or to have his license renewed.
II. Standards of review
A. Standard for a motion to dismiss
In considering a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)((j) this Court "must construe the complaint in the light most
favorable to the plaintiff, accept all factual allegations as true,
and determine whether the plaintiff undoubtedly can prove no set of
facts in support of his claims that would entitle him to relief."
In re Delorean Motor Company, 991 F.2d 1236, 1240 (6th Cir.1993).
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a
complaint. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513
F.2d 1176, 1182 (6th Cir.1975). The complaint must include direct
or indirect allegations "respecting all the material elements to
sustain a recovery under some viable legal theory." In re Delorean
Motor Company, 991 F.2d at 1240. (citations omitted). A motion to
dismiss a complaint for failure to state a claim should not be
granted "unless it appears beyond doubt that plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." Id. (citations omitted).
B. Standard for summary judgment
In considering a motion for summary judgment, the Court may
grant the motion only if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). As the Supreme Court ruled in
Celotex, "Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of
all element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
The court must view the allegations of the complaint in the
light most favorable to the non-moving party. Windsor v. The
Tennessean, 719 F.2d 155, 158 (6th Cir. 1983). "The evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S.Ct. 2505, 2519, 91 L.Ed.2d 202 (1986).
But, the mere existence of a scintilla of evidence in support
of the non-movant is not sufficient, there must be sufficient
evidence upon which a jury could reasonably find for the
non-movant. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. "The
movant has the burden of showing that there is no genuine issue of
fact, but the plaintiff is not thereby relieved of his own burden
of producing in turn evidence that would support a jury verdict."
Id. at 256, 106 S.Ct. at 2514. "Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving
party, there is no 'genuine issue' for trial." Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989) (citing
Matsushita Electric Industrial Co., Ltd v. Zenith Radio Corp., 475
U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
III. Analysis
A. Whether the Board is a legal entity that can be sued
Plaintiff has named as one Defendant the Concealed Weapons
Licensing Board for the County of St. Clair. Defendants argue that
the Board is not a separate legal entity but, rather, a department
of St. Clair County and thus not a legal entity that can be sued.
See Hughson v. County of Antrim, 707 F.Supp. 304 (W.D.Mich.1988).
The Concealed Weapons Licensing Board for the County of St.
Clair is a creature of state statute, not a department of St. Clair
County. Section 28.426(1) of Mich.Comp. Laws Ann. provides that
[t]he prosecuting attorney, the sheriff, and the director of
the department of state police, or their respective authorized
deputies, shall constitute boards exclusively authorized to
issue a license to an applicant residing within their
respective counties, to carry a pistol concealed on the person
and to carry a pistol, whether concealed or otherwise, in a
vehicle operated or occupied by the applicant. The county
clerk of each county shall be clerk of the licensing board,
which board shall be knows as the concealed weapon licensing
board....
Mich.Comp.Laws Ann. section 28.426(1). Further, the concealed
weapons license itself make clear that the concealed weapons
licensing boards are state statutory creations. The top of the
license reads "Michigan Department of State Police," "Michigan
Concealed Pistols License." The license provides that the applicant
is "hereby licensed by the Concealed Weapons Licensing Board to
carry a pistol ..." and at the bottom of the license lists the
issuing county. Based on the foregoing, the Concealed Weapons
Licensing Board for the County of St. Clair is a state, rather than
county, department. Therefore, it is a proper legal entity against
which a suit may lie.
B. Second Amendment
Plaintiff asserts that Defendants deprived him of his right to
carry a concealed weapon guaranteed by the Second Amendment to the
United States Constitution. Plaintiffs Second Amendment claim is
not viable because the Second Amendment dues not apply to the
states. "The Second Amendment declares that it shall not be
infringed, but this ... means no more than that it shall not be
infringed by Congress. This is one of the amendments that has no
other effect than to restrict the powers of the National
Government." Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct 580,
583, 89 L.Ed. 615 (1886). Federal courts still follow Presser.
E.g., Quilici v. Village of Morton Grove, 695 F.2d 261, 269 (7th
Cir.1982), cert. denied, 464 U.S. 863, 104 S.Ct 194, 78 L.Ed.2d 170
(1983).
C. Equal protection
Plaintiff argues that Defendants' denial of a concealed weapon
license violated the Fourteenth Amendment's guarantee of
equal protection. Plaintiff apparently argues that Defendants
deprived him of the fundamental right to carry a concealed weapon
and travel, thus triggering strict scrutiny. The Second Amendment,
however, does not provide Plaintiff with a fundamental right to
carry a concealed weapon. An individual has "no private right to
keep and bear arms under the Second Amendment ..." United States v.
Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948, 96
S.Ct 3168, 49 L.Ed.2d 1185 (1976).
Nor does the St. Clair County Concealed Weapons Licensing
Board's refusal to grant Plaintiff a permit deny him the right to
travel. The right to interstate travel is a basic constitutional
freedom. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22
L.Ed.2d 600 (1969). The right to intrastate travel is a basic
freedom under the Michigan Constitution, and the analysis of
government burdens on intrastate travel under the Michigan
Constitution is identical to the analysis applied to government
burdens on interstate travel under the United States Constitution.
Musto v. Redford Township, 137 Mich.App. 30, 34, 357 N.W.2d 791
(1984).
Plaintiff contends that through their blanket policy of
denying residents concealed weapons permits, Defendants have
unconstitutionally deprived him of the right to migrate to St.
Clair County. But not every policy that possibly burdens the right
to travel triggers strict scrutiny. The court must consider whether
the policy at issue deter migration or serves to penalize the right
to travel. Memorial Hospital v. Maricopa County, 415 U.S. 250, 257,
94 S.Ct 1076, 1081-82, 39 L.Ed.2d 306 (1974). Further, the "right
to interstate [and intrastate] travel must be seen as insuring new
residents the same right to vital government benefits and
privileges in the States [and Counties] to which they migrate as
are enjoyed by other residents." Id at 261, 94 S.Ct. at 1084.
Plaintiff has cited no authority for the proposition that denial of
a concealed weapon permit deters migration, penalizes the right to
travel, or that a concealed weapons permit is a "vital government
benefit[] and privilege[]." While Plaintiff may feel a bit less
secure not being able to carry a concealed weapon on his person or
in his car when he drives into urban areas, the denial of a license
for a concealed weapon is not tantamount to the denial or waiting
period for the right to vote, Dunn v. Blumstein, 405 U.S. 330, 92
S.Ct. 995, 31 L.Ed.2d 274 (1972), or to receive welfare or medical
benefits, Shapiro, supra, and Maricopa County, supra. A concealed
weapons license is not even a government benefit that rises to the
level of benefits deemed by the United States Supreme Court
as not vital, such as lower university tuition, Starns v.
Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), or
suing for divorce, Sosna v. Iowa, 419 U.S. 393, 95 S.Ct 553, 42
L.Ed.2d 532 (1975). Based on the foregoing, Defendants did not
deprive Plaintiff of the right to travel and strict scrutiny is not
triggered.
Therefore, the court must apply the rational basis test. This
test is easily met. The state has an obvious "legitimate interest
in limiting access to weapons peculiarly suited for criminal
purposes." People v. McFadden, 31 Mich.App. 512, 516, 188 N.W.2d
141 (1971).
D. Due Process
Plaintiff finally argues that Defendants deprived him of due
process of law by its blanket policy of denying concealed weapon
permits. Nevertheless, Defendants are entitled to judgment as a
matter of law because there is no genuine issue of material fact
that Plaintiff has a property interest in obtaining a license to
carry a concealed weapon. [footnote 1] Property interests protected
by the Due Process Clause of the Fourteenth Amendment do not arise
whenever a person has only "an abstract need or desire for," or
"unilateral expectation of," a benefit. Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
Rather, they arise from "legitimate claim[s] of entitlement ...
defined by existing rules or understandings that stem from an
independent source such as state law." Id.
In Erdelyi v. O'Brien, 680 F.2d 61 (9th Cir.1982), the Ninth
Circuit Court of Appeals considered a claim by a plaintiff who had
been denied a license to carry a concealed weapon and who brought
suit under section 1983 alleging that the denial of the license
violated her right to due process. The court rejected plaintiffs
constitutional challenge, holding that plaintiff had no property
interest in carrying a concealed weapon. The court reasoned:
Concealed weapons are closely regulated by the State of
California. Whether the statute creates a property interest
in concealed weapons licenses depends 'largely upon the extent
to which the statute contains mandatory language that
restricts the discretion of the [issuing authority] to deny
licenses to applicants who claim to meet the minimum
eligibility requirements.' Section 12050 explicitly grants
discretion to the issuing officer to issue or not issue a
license to applicants meeting the minimum statutory
requirements. Where state law gives the issuing authority
broad discretion to grant or deny license applications in a
closely regulated field, initial applicants do not have a
property right in such licenses protected by the Fourteenth
Amendment.
Id. (citations omitted).
The Michigan Concealed Weapons Law similarly grants discretion
to the issuing authority. It establishes boards for each county
exclusively authorized to issue a license to an applicant residing
within their respective counties. Mich.Comp.Laws Ann. section
28.426(1). The statute establishes minimum criteria for a concealed
weapons permit. An applicant for a permit to carry a concealed
weapon must be at least 18 years old, a United States citizen and
reside in the State of Michigan for at least the past six months.
Id. The statute further provides that "[a] license shall not be
issued unless it appears that the applicant has good reason to fear
injury to his or her person or property, or has other proper
reasons, and is a suitable person to be licensed." Id.
The St. Clair County Concealed Weapons Licensing Board Policy
Manual in effect at the time Plaintiff applied for a license there
makes clear that Pencak does not have a legitimate claim of
entitlement to a concealed weapons permit. First, the Policy Manual
grants the Board a large degree of discretion in issuing permits.
It provides that:
[I]icensing may be available depending upon the facts and
circumstances presented to the Concealed Weapons Licensing
Board in support of an application. The Concealed Weapons
Licensing Board will evaluate all applications uniformly and
exercise its discretion as it deems proper to assure the
safety, interest and well-being of the citizens of this County
and State.
Manual, page 4.
Moreover, the manual makes clear that the County Board
normally will not issue concealed weapons permits. The manual
provides for two types of permits: general and restrictive. General
permits are restricted to "those persons connected with the
criminal justice system, where there is a legitimate threat of
bodily injury because of past, present or future dealing with
criminal defendants." Manual,page 5. Further, the manual provides
that "[t]his Board will require the applicant to establish by clear
and convincing evidence that the presumption against issuance of [a
general] license should be overruled in his or her case." Id.
The manual specifies four categories of restricted licenses,
two of which Plaintiff conceivably could avail himself. One
category is the "Direct Transit between Bank/Business/Home" permit.
To obtain this permit, an applicant must, among other things,
demonstrate the dangerousness of the area in which he or she
transacts business and the unreasonableness of alternative measures
which would accomplish the same purpose without the necessity of a
concealed weapon license. Manual, page 8. Moreover, "[a] license of
this nature will not normally be issued ..." and an applicant "must
establish by clear and convincing evidence that this presumption
against licensing should be overruled in his or her individual
case." Id. The other category of which Plaintiff might fit is an
"employment-related" permit. But to obtain one of these restricted
permits, the applicant should be a security or bank guard. Manual,
page 10. Based on the foregoing, there is no genuine issue of
material fact that Plaintiff does not have a property interest in
obtaining a concealed weapon license.
Plaintiff argues that Erdelyi only applies to initial
applications for licenses and that he has a property interest in a
license renewal. This argument has no merit. First, the manual
expressly indicates that one should not expect to have his or her
permit renewed as of right. The manual provides that:
[I]icense holders who move here from another Michigan county
are not automatically issued a St. Clair County License. The
fact that the applicant has a previous permit will be noted,
if a photocopy is provided to the Board, but the application
will be considered as "new" and not a "renewal," and will be
judged pursuant to St. Clair County standards and procedures.
Manual,page 13. Second, the structure of the Michigan concealed
weapons statute shows that each county is responsible for
determining to whom it will issue concealed weapons licenses. The
statute establishes county boards and vests them with the exclusive
authority to issue such licenses. Mich. Comp.Laws Ann. section
28.426(1). "[P]ower to issue and revoke [concealed weapons]
licenses is properly placed with those professionals most able to
assess community needs and problems in this area." Bay County
Concealed Weapons Licensing Board v. Gasta, 96 Mich.App. 784, 293
N.W.2d 707 (1980).
IV. Conclusion
Based on the foregoing, the Court hereby GRANTS Defendants'
Motion to Dismiss or for Summary Judgment.
FOOTNOTES
1. Pencak does not argue that he has a liberty interest in carrying
a concealed weapon.